The 7th Periodic Report of the Republic of Poland
on implementation of the provisions
of the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
covering the period
from 15 October 2011 to 15 September 2017
(with a particular focus on the period
from 22 November 2014 to 15 September 2017)
TABLE OF CONTENTS
List of abbreviations3
Introduction 4
Answer to question 1 -Definition of torture5
Answer to question 2 –Rights of persons deprived of their liberty5
Answer to question 3 –Legal assistance for the poorest people7
Answer to question 4 –Commissioner for Human Rights8
Answer to question 5 –Violence against women, domestic violence9
Answer to question 6 -Human trafficking14
Answer to questions 7, 8, 9, 10 and 11-Refugees and asylum seekers15
Answer to question 12 –Legal and other measures implementing Article 5 of the Convention 18
Answer to questions 13 and 14 Treaties and agreements on mutual legal assistance18
Answer to questions 15, 16 and 17 – Trainings19
Answer to question 18 -Pre-trial detention 24
Answer to question 19 -Penitentiary system26
Answer to question 20 -Deprivation of liberty of people belonging to
'sensitive groups'27
Answer to question 21 –Violence among prisoners30
Answer to question 22 -Deaths in prisons 31
Answer to question 23 –Complaints and investigations related to tortures31
Answer to question 24 –Investigation of acts of torture33
Answer to question 25 -Secret CIA prisons34
Answer to question 26 -Compensations34
Answer to question 27 -Evidence and testimonies obtained through torture34
Answer to question 28Abortion34
Answer to questions 29 and 30Counteracting discrimination36
Answer to question 31 -Terrorism37
Answer to question 32 –Other activities38
LIST OF ABBREVIATIONS
1
ABW – the Agency of Internal Security
CAT – Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
CPT – the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
CZSW – the Central Board of Prison Service
ERW – the European Prison Rules
ECHR – the European Court of Human Rights
GUS – the Central Statistical Office
HFHR – Helsinki Foundation for Human Rights
KGP – the National Police Headquarters
Kk – the Polish Penal Code
Kkw – the Polish Executive Penal Code
NPM – the National Preventive Mechanism
Kpa – the Polish Code of Administrative Procedure
Kp – the Polish Labour Code
Kpc – the Polish Code of Civil Procedure
Kpk – the Polish Code of Criminal Procedure
Kro – the Polish Family and Guardianship Code
KSSiP – the Polish National School of Judiciary and Public Prosecution
MEN – the Ministry of National Education
MON – the Ministry of National Defense
MRPiPS – the Ministry of Family, Labour and Social Policy
MS – the Ministry of Justice
MSWiA – the Ministry of the Interior and Administration
MZ – the Ministry of Health
NSA – the Supreme Administrative Court
OPCAT – Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
PDOZ – a detention room
PK – the National Prosecutor's Office
PKGPOPC – the Police General Commandant Representative for Protection of Human Rights
PRT – the Government Representative for Equal Treatment
RM – Council of Ministers
RP – the Republic of Poland
RPD – the Commissioner for Children Rights(Ombudsperson)
RPO – the Commissioner for Human Rights (Ombudsperson)
RPP – the Commissioner for the Patients' Rights
ESS – the Electronic Monitoring System
SG – the Border Guard
SW – the Prison Service
TK – the Constitutional Tribunal
UDA – the Anti-Terrorism Act
OFF – the Office for Foreigners
EU – European Union
1
1
INTRODUCTION
Previous – the fifth and the sixth – Periodic Reports of the Republic of Poland on implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dz. U. of 1989, No. 63 item378, App.) covered the period from 1 October 2004 to 15 October 2011. Moreover, additional information concerning the period between October 2011 and October 2013 was presented to the Committee during a defence of the 5th and the 6th Report, which was held on 30-31 October 2013.
In connection with the above, in the present 7th Report a particular attention will be paid to changes that took place in Poland in the period from 2014until 15 September 2017. Owing to the fact that a part of statistical data quoted in the Report is collected for the annual period, sometimes it was not possible to present data more up-to-date than those as at the end of 2016.
ANSWERS TO QUESTIONS (LIST OF ISSUES)
THE COMMITTEE AGAINST TORTURES (CAT/C/POL/QPR/7)
ANSWER TO QUESTION 1 – DEFINITION OF TORTURE
Information provided in the previous Report remains valid, in particular in the scope of legal regulations.In spite of the fact that the Polish Penal Code does not contain a separate torture crime, all elements specified in the definition of torture in CAT are penalised in Poland – they meet the statutory definition of various crimes contained in Kk.Notwithstanding this, the Ministry of Justice started analytical works aiming at evaluation of the justified character of introducing the definition of torture to the Polish Penal Code.
ANSWER TO QUESTION 2 – RIGHTS OF PERSONS DEPRIVED OF THEIR LIBERTY
The exercise of the detainee's right to contact with the lawyer has been strengthened by the Act of 27 September 2013 amending the Act – the Code of Criminal Procedure and other acts, which entered into force on 1 July 2015. This act provides for applying regulations concerning contact with the lawyer in the expedited procedure to detainees [1].Office hours of attorneys and legal advisors are ensured in the expedited procedure, for the needs of exercising the right to defense, including contact with the lawyer.Each year, competent councils prepare lists of attorneys and legal advisors and their office hours.These lists are transferred to presidents of district courts and are updated (they contain, among others, contact details of lawyers on duty).They are made available to competent public prosecutor's offices and police departments operating within the area of a given district court.Lawyers on duty are available in district courts (the lowest level of courts) or in other places, if there is a need to immediately undertake defence.This means that detainees may immediately initiate a contact with the lawyer or legal advisor, who is on duty on a given day.As regards the confidentiality of contacts with the lawyer, attention should be paid to the new Regulation of the Council of Ministers of 29 September 2015 on the proceedings when executing certain rights of police officers.As opposed to the previous regulations, the present ones does not contain a provision providing for an obligatory presence of a police officer during the detainee's conversation with the lawyer.According to the detainee's letter of rights, which is delivered thereto (an appendix to the regulation), a police officer may be present during his/her conversation with the lawyer only in exceptional cases, justified by special circumstances.Insofar as the right of the person arrested to contact with the lawyer or the attorney is concerned, it is guaranteed in Article 102 item 7 of Kkw[2]
On the other hand, when conveying a person to a remand prison/prison pursuant to Article 211 of Kkw, a person in custody, immediately after being conveyed to a remand prison/prison, has the right to notify about the place of his/her stay the immediate family or another person, association, organisation or institution, as well as his/her defense attorney.A foreigner in custody additionally has the right to notify a competent consular office, and in the event of a lack thereof - a competent diplomatic representation office (in the case when a person in custody has no citizenship - he/she has the right to contact with a representative of the state where he/she has his/her permanent address).
As regards persons in custody who have, pursuant to Article 215 of Kkw, the guaranteed right to communicate with the defence attorney or the attorney being the lawyer or the legal advisor in absence of other persons, as well as by mail, as of 1 July 2015, this right was extended to include the right to communicate with the attorney not being the lawyer or the legal advisor approvedby the Chairperson of the Chamber of the European Tribunal of Human Rights to represent the convict before this Tribunal in absence of other persons, as well as by mail.New regulations reiterated the right of the authority at the disposal of which a person in custody remains, namely the possibility to reserve the right for its representative or a person authorised to be present during the visit.Article 217c of Kkw was amended – as of 1 July 2015 the possibility for a person in custody to contact with a defense attorney by phone became the rule.A prior condition is the consent of the authority, at the disposal of which this person remains, however, a refusal to grant the consent may be justified only by a real fear that a conversation will be used to commit a crime or for the purpose of unlawful obstruction of the criminal procedure.
Foreigners staying in guarded centres for foreigners have the guaranteed right to contact with non-governmental or international organisations involved in providing assistance to foreigners, including legal assistance, as well as to contact with the attorney (including visits) in conditions not violating the right to privacy.In all guarded centres for foreigners meetings with representatives or persons providing legal advice (representatives of NGOs) take place without participation of the personnel of these centres in visiting rooms, or other rooms specially prepared for this purpose.These visits take place in a manner preventing image recording.Recording is possible only upon request of one of the parties taking part in the visit.
Currently, the Government is working on a change in the Act on granting protection to foreigners within the territory of the Republic of Poland, which envisages introducing to the Act on foreigners the provisions guaranteeing free legal assistance for foreigners.Legal assistance is to be granted, in particular, to a foreigner, in relation to whom a return decision or a decision on extending the term of voluntary return was issued, and who acts without the attorney or the legal advisor.Assistance will be provided by attorneys, legal advisors and authorised employees of non-governmental organizations (against remuneration and refund of travel costs from the funds of the General Commandant of the Border Guard).Assistance will include preparation of appeals against decisions and legal representation in the appeal proceedings.
As regards the right to obtain information about grounds for detention and formulated charges it should be indicated that the information submitted by the Polish party remains valid.Additionally, attention should be paid to changes that have been introduced in the Act of 27 September 2013 amending the Act – Code of Penal Procedure and other acts:
a)in Article 244 of the Code of Penal ProcedureThis Act provided for the detailed calculation of rights that the detainee shall be informed of, as well as introduced the letter of rights [3].It should be emphasised that the change of Article 244 § 1 of the Code of Penal Procedureconsisted only of direct formulation of rights that the detainee already had on the basis of binding regulations.
b)in Article 300 of the Code of Penal ProcedureThe Act directly listed rights that the suspect should be informed of (including information about the charges and their change).At the same time it introduced the letter of rights[4].The change of Article 300 of the Code of Penal Procedureconsisted only in direct calculation of the rights previously granted to the suspect and the defendant.
The following rights were modified:
-right of access of the parties of the procedure to the case files in connection with remand or extension thereof (Article 156 § 5a of Kpk).The abovementionedAct of 27 September 2013 eliminated the possibility of refusing to make the case files available in such a case,
-right to interpretation and translation (Article 72 § 2 of Kpk).The abovementioned Act of 27 September 2013 introduced the possibility to use the assistance of an interpreter also for the purpose of communication between the suspect or the accused and the defense attorney.
On the other hand, when it comes to informing a family member about detention or remand immediately after their enforcement, it should be indicated that the valid regulations already provide for such a possibility[5].
ANSWER TO QUESTION 3 – LEGAL ASSISTANCE FOR THE POOREST PEOPLE
Free legal counselling
Pursuant to the Act of 5 August 2015 on free legal counselling and legal education (Dz.U. item1255, with lateramendments, hereinafter referred to as 'the Act') there are 1,525 free legal assistance points operating across the whole country, where certain categories of people defined by the law may access free legal counsellingFree legal counselling is granted in these points by attorneys or legal advisors, and, in particularly justified cases, by articling students authorised by attorneys or legal advisors.On the other hand, in the points selected by the county's administration for providing legal counselling by non-governmental organizations the same can be provided also by tax advisors – with regard to the tax law, excluding tax affairs related to running business operations, as well as by graduates of law studies (having at least three-year experience in performing activities requiring legal knowledge, directly related to the provision of legal counselling).
Legal counselling provided for in the regulations of the Act is provided only at the pre-litigation stage.It results from the content of Article 3, passage 1, item 3 of the Act, which excludes the possibility for a person granting free legal counselling to prepare procedural writs in pending preparatory or court proceedings or writs in pending court-administrative proceedings.Such a solution is a purposeful act of the legislator, since the provisions of particular procedural acts regulate the possibility of obtaining legal assistance in pending proceedings.
Information about the location and opening hours of free legal counselling points is available on the website of the Public Information Bulletin of particular county offices.Organisation and functioning of these points is administered by counties for which free legal counselling execute is a task ordered by the government administration.
On the other hand, pursuant to Article 3 passage 1 of the Act, free legal counselling, covers:
1)informing the entitled person about legal circumstances, his/her rights or obligations, or
2)indicating to the entitled person a route for solving his/her legal problem, or
3)granting assistance in preparation of a draft letter in the cases referred to in item 1 and 2, excluding procedural writs in pending preparatory or court proceedings or writs in pending court-administrative proceedings, or
4)preparing a draft letter concerning exemption from the costs of proceedings or request for a court-appointed attorney in court or arbitration proceedings, or request for a court-assigned counsel, a legal advisor or a patent attorney in court-administrative proceedings.
Free legal counselling covers all fields of law, apart from the matters related to customs, foreign exchange law, commercial law and business law, except for preparation to its starting.One of the categories of the persons authorised to free legal counselling pursuant to Article 4, passage 1, item 5 of the Act are persons who have not attained the age of 26 years.The age group formed this way allows legal counselling to be used also by persons below 18, this right is, however, implemented by a statutory representative, pursuant to Article 98 of Kro.
In 2016 free legal counselling items provided 113,366 legal advices to 99,774 persons, 0.23% of which was granted to persons below 16 years of age and 2.22% to persons aged 16-19.
Fund of Justice
On 1 Jan 2012 the Crime Victims and Post-Penitentiary Assistance Fund was established.On 12 August 2017 the principles of functioning of the above Fund were changed and it was renamed to 'the Fund of Justice'.It is a national special purpose fund, the holder of which is the Minister of Justice.Revenues of the Fund include vindictive damages and cash benefits ruled by courts[6].Legal counselling financed from the Fund of Justice performs a subsidiary role in respect of free legal counselling granted under criminal or civil proceedings to persons, who proved that they are not able to sustain the costs of a professional attorney on their own, or free legal counselling provided owing to the status of the party of such proceedings, which involves the need for having such a representative.In 2016, a total amount of PLN 19,715,182 was granted through a competitive processto 26 selected organisations in which victims may seek legal assistance.Most of the persons authorised to obtain this assistance are victims of domestic violence, including minors.
ANSWER TO QUESTION 4 – COMMISSIONER FOR HUMAN RIGHTS
In a four-year period covered by the report, RPO applied for granting funds in the total amount of PLN 170,143,000, of which PLN 150,574,000 was finally granted, i.e.88.5% of the requested amount.A focus group working within the Office of RPO and conducting tasks of the national preventive mechanism (hereinafter NPM) does not have a separate budget, and its expenditures on operations are charged to the general budget of RPO.As a result, only data concerning expenditure on operations of NPM in particular years can be presented.In years 2014-2016[7] a total of PLN 8,442,188.07 was spent on the implementation of NMP tasks, which is 7.4% of the entire budget of RPO.
As at 30 June 2017 the Office of RPO have 284 full-time positions (this number was similar in the years covering the reporting period).In years 2014-2015 NPM employed 12 persons (in 2015 there was one additional full-time position in the secretary's office and half-time position for a physician).On the other hand, in the years 2016-2017 NPM employed 11 full-time positions, including:a director, a deputy Director, an employee of the secretary's office and 8 professional employees.Detailed information on operations of NPM has been presented in Appendix 1.
The Office of RPO does not keep separate statistics of complaints concerning violations of CAT.These issues are conducted by groups examining complaints, that operate both in the seat of RPO in Warsaw and in the Offices of the Field Plenipotentiaries (Gdańsk, Wrocław, Katowice).As regards complaints against the police it is not possible to keep separate statistics concerning cases reported to RPO concerning the use of torture, or other cruel, inhuman or humiliating treatment or punishment.Therefore, statistics relate to the general number of requests including complaints against the Police and a manner of handling these requests.In the period covered by the report a total of 3,233 complaints related to the issues concerning the Police were received (including 477 complaints received by the Offices of the Field Plenipotentiaries).In 74 cases a violation of rights and liberties of the applicant was ascertained (including 20 cases examined in the Offices of the Field Plenipotentiaries).In the same period a total of 3,936 cases related to activities of the Prison Service were reported (including 173 complaints received by the Offices of the Field Plenipotentiaries).These cases related mainly to treatment, using means of physical coercion, body search and inspection of residential cells.In 96 cases a violation of law was ascertained (including in 4 cases examined by the Offices of the Field Plenipotentiaries).